Abu Dhabi Court of Cassation (General Assembly), Request No. 2 of 2013 (Civil), decision of 22 January 2014
A judgment has res judicata effect only if it is final (قطعي) and issued by a court with jurisdiction, and only on a question that is fundamental, unchanged, argued between the parties and expressly decided; there is no implied res judicata. A civil award made by the criminal court in the civil action joined to the prosecution becomes final if not appealed, even if the criminal conviction is appealed. A later acquittal on the criminal charge that does not expressly address the civil award does not cancel it, and the award remains enforceable.
A bank branch manager was convicted by the Abu Dhabi misdemeanour court (case 14445 of 2008) of forging a loan contract by obtaining a customer's signature by surprise and fraud and using it, and in the civil action joined to the prosecution was ordered to repay the customer AED 590,000 and pay AED 100,000 in damages. The manager appealed only the criminal conviction and was eventually acquitted by the Court of Cassation (criminal appeal 1246 of 2009); the civil award was never appealed. In separate civil proceedings the customer's claim against the manager was held barred by the earlier civil award, and the bank was ordered to pay compensation for its own fault. When the customer sought to enforce the civil award, the execution judge closed the file on the ground that the acquittal had cancelled it, and the Court of Appeal agreed. On the customer's appeal in cassation (No. 120 of 2013, civil), the chamber referred the matter to the General Assembly because of conflicting decisions, including a commercial chamber decision (appeals 75 and 129 of 2013) that had treated the civil award as final.
The General Assembly held that res judicata requires a final judgment issued by a court with jurisdiction, and that a question is barred from relitigation only if it is the same fundamental question, argued by the parties and settled by the first judgment. A civil award made in the civil action joined to criminal proceedings has the authority of a civil judgment against the parties to it; if the losing party lets the appeal period lapse, or appeals only the criminal part, the civil part becomes final. The authority of a judgment arises only from an express ruling, in the operative part or reasons necessarily linked to it; silence cannot create an implied ruling. The acquittal did not address the civil award, so it did not cancel it. The General Assembly quashed the judgment, set aside the execution judge's decision and declared the civil award and the commercial chamber's judgment enforceable execution titles.
Victims of employee fraud, including bank customers, often obtain compensation in the civil claim attached to a criminal case. The decision protects such awards: if the defendant does not appeal the civil part, it becomes final and enforceable even if the criminal conviction is later overturned. It also confirms that a bank may be separately liable for its own fault in such a fraud.
| Article 49 of Federal Law No. 10 of 1992 (former Evidence Law) on res judicata, the rule applied (the decision states it without citing the article) Decided under this law; it has been replaced by Evidence Law. |
“ولا يتصور إلا أن يكون قضاء صريحاً لان سكوت الخصوم والمحكمة عن مسألة ما لا يصح معه القول أن المحكمة قضت في هذه المسألة قضاء ضمنياً”Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.
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